POSTSCRIPT / October 12, 2008 / Sunday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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Presumption of malice in libel cases is unfair

NO JAIL TERM: Some quarters want to “decriminalize” libel. This means dropping the imprisonment aspect of penalties for those convicted of libel and limiting liabilities to payment of civil damages.

Working journalists should welcome that. We do appreciate the scrapping of prison terms, but that may not be necessary — as long as state prosecutors and judges are fair and they reject the inducements of complainants with money and influence.

In a level field, true journalists can defend what they write.

Whatever direction the decriminalization move takes, the Supreme Court has taken the initiative of advising judges in the lower courts to avoid imposing jail sentences (and only render judgment for damages) in libel convictions.

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MALICE PRESUMED: As expected, some lawmakers whose hearts allegedly bleed for poor newspapermen keep pushing for the decriminalizing of libel. Thank you.

But I would prefer that they work instead on amending the law on libel to REMOVE THE UNFAIR PRESUMPTION OF MALICE on the part of the writer even before the trial starts.

Under our system of laws, one is presumed innocent until proved guilty. The prior presumption of malice in libel cases goes against this basic rule.

Under certain circumstances, a writer sued for libel is presumed BY LAW to have been motivated by malice or ill will. He has to overturn this negative presumption to get off the hook.

This violation of journalists’ right to equal protection should be expunged from the penal code.

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ELEMENTS OF LIBEL: Libel as defined under Article 353 of the Revised Penal Code is — I am now using the language of the law — a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance tending to discredit or cause the dishonor or contempt of a natural or juridical person, or to blacken the memory of one who is dead.

From this definition we cull the elements of libel: (a) imputation of a discreditable act or condition to another; (b) publication of the imputation; (c) identity of the person defamed; and, (d) existence of malice.

These elements of libel — except malice — are easy to prove or disprove since the published piece is there as public exhibit.

The main defense line in libel cases is to show that at least one element is missing. If one element is not there, there is no libel. It is that simple.

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MALICE IN LAW: And among the elements, malice is the most difficult to prove because it is mainly in the mind.

However, the law as it is now written presumes that malice is present in every defamatory imputation. Article 354 of the Revised Penal Code says: 

“Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

“1. A private communication made by any person to another in the performance of any legal, moral or social duty; and

“2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.”

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PRIVILEGED: The usual defense against malice in law is to show that the matter written about is qualifiedly privileged.

For instance, when a reporter writes on a privilege speech delivered by a senator on an alleged scandal and persons are mentioned, the writer shares in the lawmaker’s (parliamentary) immunity and his report is deemed privileged.

Once it is established that the article is privileged, the burden of proving actual malice (malice in fact) rests on the complainant.

My thesis is that from the very beginning, the burden of proving malice should rest on the complainant and not merely presumed by law (malice in law).

It should not be that difficult to rewrite or amend the law to give journalists the same universal right to presumption of innocence.

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NOTEPAD: Because of the scare over China goods, some merchants and repackers do not indicate where the products were made. But the bar code will reveal that. If made in China, the bar code starts with 690, 691 or 692. If made in Taiwan, the bar code starts with 471. Samples of other bar codes’ initial digits: 00 to 09, USA and Canada products; 30 to 37, France; 40 to 44, Germany; 49, Japan; 50, United Kingdom.

… As of end of July, the national government debt stood at P3.966 trillion, 41 percent of which was with foreign creditors and 59 percent with domestic creditors. In effect, each of us 90.4 Filipinos is indebted by P43,871. The foreign debt declined by P33 billion or two percent from the end-June level, because of the government’s P1 billion net repayment, P4 billion net appreciation of third currencies against the US dollar and P7 billion appreciation of the peso against the dollar.

… Reports from Pampanga have it that the campaign to recall Gov. Eddie “Among Ed” Panlilio has gathered at least 200,000 signatures of voters. The minimum requirement for a political unit as big as Pampanga is 100,000 or 10 percent of the voting population.

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(First published in the Philippine STAR of October 12, 2008)

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